Why the Second Amendment protects a ‘well-regulated militia’ but not a private citizen militia

Yahoo News

When a federal judge in California struck down the state’s 32-year-old ban on assault weapons in early June 2021, he added a volatile new issue to the gun-rights debate.

The ruling, by U.S. District Court Judge Roger Benitez, does not take effect immediately, because California has 30 days to appeal the rejection of its assault weapons ban. Most coverage has focused on Benitez’s provocative analogy between an AR-15 and a Swiss army knife. But the case raises troubling questions about the meaning and proper role of “militias” under the Second Amendment.

The plaintiffs in the lawsuit claimed that California’s assault weapons ban unconstitutionally restricted citizens’ Second Amendment rights by preventing them from using assault weapons for home defense and other legal purposes. California’s defense was that assault weapons are more dangerous than other firearms and therefore subject to additional restrictions.

In his ruling, Benitez asserts that citizens have a right to own a private assault weapon not just for defense of a gun owner’s home, but also for “citizens’ militias” engaged in homeland defense.

If the founders were alive today, I believe they would be very concerned – because the Constitution is clear that the only militias protected by the Second Amendment are “well-regulated” units authorized and controlled by state governments, not a private citizen militia.

Starting from a precedent

The preamble to the Second Amendment mentions service in a militia as a reason citizens have the right to keep and bear arms: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

In his ruling, Benitez builds on the 2008 Supreme Court case D.C. v. Heller. In that landmark case, the Supreme Court held, as Justice Antonin Scalia wrote, that the amendment protects a right to possess a firearm unconnected to military service and that individuals are free to use such weapons for “traditionally lawful purposes, such as self-defense within the home.”

Benitez accepts this individual right, including to own assault weapons, but he adds what he calls “citizen militias” to the mix, which he defines as an “informal assembly of able-bodied, ordinary citizens acting in concert for the security of our nation.” The AR-15, he says, is an “ideal arm” for such purposes.

While distinguishing a citizen militia from a “state-organized militia,” the judge is vague about what, exactly, a citizen militia is. The examples he offers include the armed partisans led by Fidel Castro, Ho Chi Minh, and the Taliban and Iraqi insurgents. Although Benitez surely knows that the United States has a long history of vigilantism and mob violence, he doesn’t say which informal groups of armed citizens in this country might qualify and which would not.

That lack of specificity is a problem. Does a citizen militia include the protesters who occupied the Michigan State Capitol during the spring of 2020, posing with assault weapons slung over their shoulders? What about the activists who in the summer of 2020 briefly created Seattle’s Capitol Hill autonomous zone, where guards armed with AR-15s stood watch at the entrance and patrolled the streets? Kyle Rittenhouse, on trial for killing two people with a Smith & Wesson rifle in Kenosha, Wisconsin, allegedly viewed himself as part of a militia and claimed to be helping the police.

Government-authorized groups only

The biggest problem with Benitez’s ruling is that the Second Amendment sanctions a “well-regulated militia,” not an informal assembly of armed citizens. As the founders knew, a “well-regulated militia” was one authorized, trained and – with growing frequency during the American Revolution – armed and provisioned by state governments.

After the American Revolution, the purpose of these state militias was clearly laid out in Article I, Section 8, Clause 15 of the Constitution: so Congress could use them to “execute the laws of the union, suppress insurrections, and repel invasions.”

Today, the militia in all 50 states is the National Guard. In California, as Benitez notes in his opinion, the militia also includes the State Guard, a force trained and equipped by the government. There is nothing informal about it.

Avoiding mob rule

Having lived through the Revolutionary War, the founders knew why the words “well regulated” mattered. They had seen what happened when people took the law into their own hands.

After the Boston Massacre in 1770, when British soldiers opened fire on a crowd that had been pelting them with rocks and ice, John Adams defended the soldiers during their murder trial, worried that a guilty verdict could lead to mob rule.

In 1775, the Colonial Minutemen who stood their ground at Lexington and Concord served in units authorized by the Massachusetts legislature. Although taking up arms against their king and his soldiers, they fought as members of a well-regulated militia.

Naturally, not all early Americans accepted such distinctions. During the so-called Whiskey Rebellion from 1791 to 1794, which occurred after the Constitution and Second Amendment had been ratified, armed insurgents near Pittsburgh forcibly resisted a new federal tax on distilled spirits, mustering in military-style formations, tarring and feathering federal excise officers, and threatening secession. President George Washington responded in 1794 by marching west at the head of 12,950 federalized state militiamen. By the time the Western Army reached the Ohio River, most of the rebels had gone home. The nation’s first president made clear that in a democratic republic, the way to make your voice heard is through the ballot box, not the muzzle of a gun.

The right to own a gun is “not unlimited,” as Justice Scalia wrote in 2008. For that reason, the Supreme Court held that state and federal authorities can bar firearms from schools and public buildings, while the people remain free to prohibit what Scalia called “dangerous and unusual weapons.”

The AR-15 may no longer be unusual, but California’s decision to appeal Benitez’s ruling shows that the state still thinks it is dangerous. If the rifle really is Benitez’s “ideal” weapon for a citizen militia, then perhaps the state is right.

This article is republished from The Conversation, a nonprofit news site dedicated to sharing ideas from academic experts. It was written by: Eliga Gould, University of New Hampshire.


15 thoughts on “Why the Second Amendment protects a ‘well-regulated militia’ but not a private citizen militia

  1. Tench Coxe:
    “Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man gainst his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American…. The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.”

    “As civil rulers, not having their duty to the people before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms.”

    Okay communists, go for it. Do it! And we will f-king apply that 2nd Article as it is written. Any militia under the control of the occupation is a f-king Tory militia. The right to keep and bear arms belongs to the individual free sovereign, and it isn’t for hunting or target shooting. It is for any and every mother f-ker that would attempt to disarm and subjugate us. It is especially for the unlawful United States Corporation and its criminal acts which are going to stop. And our common law courts are coming back, no matter how many f-king communists we have to kill. You can utter your bullshit to the wind as you march into the sea and you can look over your shoulder, maybe then you will realize who controls the power and the jurisdictional authority in this country. Ride your high, you have yet to meet the American nationals, and no amount of begging nor pleading is going to change your fate.

    1. Thank you, Henry. Just reading the title of this article got me outraged, even with the wrong use of the word “citizen.” They are so afraid of the word “individual.” They know their whole false system must bow to individual rights as stated in our Bill of Rights. I guess they just don’t know we’re brave enough and fed up enough to create that Bill of Rights system of justice, beyond all their pretense. Holding onto to power must be exhausting for them, and every day it will grow more and more exhausting, as our numbers grow and our determination is sharpened. Glad you’re there, brother.


  2. Thank you Henry. I like … You have yet to meet the American nationals! We’ll rip you a new assh*le you have’nt met us yet Chicken Sh* T MFErs

  3. This article is written for the sole purpose of redefining and misleading the words used in the bill of rights.
    Rights do not come from that document. It is a limit set on government of what laws they can not pass.

    What a joke. Effin a$$ clowns.

  4. Only reason I clicked on this was to read the absolutely correct comments and knowing Henry would have something to say about the nonsense headline. Thanks Henry and the rest of the commenters. As usual, “Yahoo News” is for “yahoos”….

    1. Thanks, Gray State. Wow, can it get more communistic than this? I guess it can… just remembering Mao’s ditch.

      Muzzle madness!! Defy the muzzle!!!!!!!!


      1. Speaking of muzzling… No new articles posted yet today. Hope it’s only because of a busy schedule, but worry that it’s “technical issues” brought on by the enemies of freedom. If so, may they soon be overcome.


  5. Yahoo Suspended Commenting on the Article, ha hah ha ha…. I was gonna link this article and responses on the articel there… No can do… Well of course, they know where they tread….

    Our time approaches people,

    1. Yahoo no longer allows any commenting on their articles anymore under the guise of “creating a safe speech environment” aka censorship much like what is done in Communist China.

      They know that the only way they can get away with this bullshit propaganda is if they eliminate the commenters. If they didn’t, they wouldn’t have any commenters left to leave a positive note. Even their own bots would think they’re crazy. That’s why they’re called, “”Yahooooooo!!!”. Or should I say, “Cuckooooooo!!!”.

    1. Feels like we are, in the words of Sun Tzu, “…conquering an enemy that is already defeated.”

      He also said:

      “Whoever is first in the field and awaits the coming of the enemy, will be fresh for the fight; whoever is second in the field and has to hasten to battle will arrive exhausted.”

      “In making tactical dispositions, the highest pitch you can attain is to conceal them.”

      “Let your plans be dark and impenetrable as night, and when you move, fall like a thunderbolt.”


  6. Wow…. Wow…. Wow…..This is a Commie Yahoo masterpiece. Only Yahoo can get away with this kind of trash. Their word twisting logic is absolutely ridiculous.

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